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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Kabashi, R (on the Application of) v Secretary of State for the Home Department [2014] EWHC 3424 (Admin) (21 October 2014) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2014/3424.html Cite as: [2014] EWHC 3424 (Admin)

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		21/10/2014

Ms Maura McGowan :

1. This is one of a very large number of "legacy cases" in which there has been a challenge by a claimant to a decision made by the SSHD on a purported fresh claim. A number of points of challenge arising in similar cases were dealt with by Mr. Justice Ouseley in the recent case of Jaku and others v SSHD [2014] EWHC 605 (Admin). That judgment was handed down on 11 March 2014. This claim was issued on 1 March 2012. Permission was granted on a renewed oral hearing on 6 November 2012. The arguments raised by the claim, although important, are relatively straightforward and can be dealt with concisely.

The Background

2. The claimant in this case is a Kosovan national. He did not attend court and the SSHD had not heard from him since 15 May 2014.

i) He originally claimed asylum on 16 August 2002, he was a minor at that date.

ii) That claim was refused and on 25 September 2002 he was granted exceptional leave to remain until 24 December 2003.

iii) On 27 May 2004 he was refused leave to remain and that decision notice was served on him.

iv) There was silence until 24 February 2010 when he asked to be considered for a grant of leave. His new address was acknowledged in March 2010.

v) The case was placed with the Case Resolution Directorate (CRD) on 23 February 2011. The CRD was the unit in charge of the "legacy" of unresolved asylum cases.

vi) The claimant's new solicitors repeated his request for a grant of leave on 27 June 2011.

vii) The case was transferred, with many others, from the CRD to a new unit, the Case Assurance and Audit Unit (CAAU) on 26 September 2011.

viii) A series of pre-action protocol letters was sent, the final one on 25 November 2011, alleging that the SSHD had dealt with the claimant's case unlawfully.

ix) This claim was issued on 1 March 2012. Permission was refused on 23 July 2012. The application was renewed orally and Mr. Justice Irwin granted permission to apply for judicial review on 6 November 2012.

x) On 25 October 2013 a decision letter, dated 23 October 2013, was served on the claimant. The SSHD refused to accept that there was a fresh claim on Art 8 or any other grounds. It also included a decision to remove.

xi) There followed a series of occasions upon which the claimant failed to report as requested.

xii) On 28 April 2014 the claimant made further submissions in person.

xiii) The claimant continued to fail to meet the requirements to report.

xiv) On 6 June 2014 the SSHD wrote to the claimant refusing to accept that the further submissions amounted to a fresh claim. There has been no response to that, or a later, letter.

3. The amended claim is based upon four grounds of complaint as to the validity of the decision, as follows:

A. The decision of 25 October 2013, to remove but only grant an out-of-country right of appeal,

B. The decision of 23 October 2013 to refuse leave to remain on exceptional grounds under paragraph 353B of the Immigration Rules,

C. The decision of 23 October 2013 not to grant indefinite leave to remain and

D. The failure to apply paragraph 395C of the Immigration Rules in making the decision of 23 October 2013.

Ground A

4. The SSHD concedes that the decision to grant an out-of-country right of appeal is flawed and the claimant should have been granted an in-country right of appeal. An undertaking is given to the court that the decision of 25 October 2013 will not stand, and that if a decision to remove is to be taken in this case, the claim will not be certified as ill-founded so as to deprive the claimant of an in-country right of appeal.

Ground B

5. The claimant submits, that in light of the concession on Ground A, the balance of the claim should be stayed pending the final outcome of any appeal. The respondent resists that submission and asserts that Ground B is "hopeless". The claimant contends that the SSHD has "failed to consider her earlier concession". That was the concession that the impression created by the Summary Grounds of Defence that there had been a continuing requirement to report throughout the period between 2004 and 2010 was incorrect. The SSHD had asked the claimant to leave the UK voluntarily in 2004. The SSHD submits that the submission must fail in any event because, whether there was such a requirement to report or not, the fact is that the claimant made no contact with the SSHD in that period. It is clear that the SSHD is entitled to take into consideration such a failing in assessing whether to exercise her discretion to find in the claimant's favour on exceptional grounds. This ground is without merit and must fail.

Ground C

6. The argument that it is unlawful that one claim is dealt with in a manner inconsistent with another has been well rehearsed in many cases. The SSHD is criticised because all cases in a particular category have not been dealt with in the same way, that is have not been resolved in the same way. If that proposition, in the broadest sense, was right, then the fact that one case was refused would mean that all in a similar category should be refused. That is manifestly wrong. Just as the proposition that if any claims in the category are allowed then all should be allowed is manifestly wrong. The SSHD is obliged to exercise her judgment and discretion, as appropriate, in each case on the basis of the facts in that particular case. She must apply the law and policy in force at the time of the decision making exercise. Hamzeh and others v SSHD [2013] EWHC 4113 (Admin). It is clear that the SSHD must apply a consistent approach to cases in a similar category; otherwise her approach would not be rational, EB (Kosovo) v SSHD [2008] UKHL 41. It is apparent that a consistent approach does not determine the same outcome in each case. Accordingly Ground C has no merit and must fail.

Ground D

7. The point in Ground D rests on the argument that the claimant had a "legitimate expectation" that the SSHD would apply paragraph 395C of the Immigration Rules and, as a consequence, allow the claim. This argument has been put forward in a large number of cases and has been rejected by the court. In particular in Geraldo v SSHD [2013] EWCH 2763 (Admin) it was held that there was no legal duty on the SSHD to consider that category of 'legacy cases' by any fixed date, and not by July 2011, in any event. No commitment has been given by the SSHD to consider this claim by any fixed date, let alone July 2011. She was, and continues to be, under an obligation to consider each case according to the law and rules of practice in force at the time. At the time she considered this claim paragraph 395C was no longer in force. Rather, at the time of the decisions in this case, 23 October 2013 and 6 June 2014, paragraph 353B was the governing provision. This ground also has no merit and must fail.
8. Accordingly Grounds B, C and D are without merit and are dismissed. Ground A has merit and is resolved to the benefit of the claimant by the undertaking given by the SSHD, namely that that the decision of 25 October 2013 will not stand, and that if a decision to remove is to be taken in this case, the claim will not be certified as ill-founded so as to deprive the claimant of an in-country right of appeal.
9. As to costs, the SSHD submits that the claimant has failed to respond to the communications from the SSHD to resolve this case and that failure is a direct cause of the need for the hearing. Accordingly the claimant should bear the burden of the costs incurred to date. I order that the claimant do pay the costs in accordance with the amended schedule, to include the costs of today's attendance.